Share this:

Let’s say you’re at desk and you send a message to a client using your company e-mail account. Most workers know — or should by now — that their employer has the right to read it.

Now let’s say you’re sending a private e-mail on a personal account. And say you’re sending it not from your office but from your bedroom, using a company-issued laptop. Can your employer read it then?

The short answer is: There’s no short answer. But many are asking such questions, as the digital era spawns a host of e-mail privacy issues that would have been hard to imagine in the days of the mimeograph.

With no federal law governing employees’ e-mail privacy, there’s plenty of gray area. And the result is plenty of lawsuits from workers — some shocked to learn that their bosses could and did read their private e-mails — claiming their privacy has been violated.

“It’s a quagmire out there,” says Alan Genitempo, a partner with New Jersey law firm Piro Zinna who’s spent 20 years in employment law. “Technology is creating lot of issues that never existed before.”

But two major cases — one just decided in New Jersey and one that will be argued in front of the US Supreme Court next week — may set important precedents about what’s private and what isn’t, and shape policy for thousands of employers.

“The issue is the sanctity of personal communication,” says Lillie Coney, associate director of the Electronic Privacy Information Center. “It’s just not reasonable to say you have no privacy because you happen to be at work. The question is where the line is going to be in terms of what’s appropriate.”

A private matter?

Where business e-mails are concerned, courts have generally upheld companies’ right to read. There’s no significant dispute over bosses’ right to view anything sent through company accounts during work hours, and the vast majority of companies do it as a matter of policy.

When e-mail is sent via a personal account — and yes, these are easily accessed by employers when sent over a company server, even from home — the waters get muddier.

That was the situation in the New Jersey case, Stengart v. Loving Care. The plaintiff, Marina Stengart, was a worker for a home health care agency who quit her job and filed a discrimination suit against the company. When preparing their defense, her employers scoured the laptop they’d provided Stengart during her tenure, digging up stored images of e-mails she’d exchanged with her attorney about a potential suit, using her Yahoo account.

Stengart called it a violation of her privacy. The company said its policies clearly staked out the right to access communications sent with company computers. They won in trial court, but an appellate panel overturned the decision — and the state supreme court held up that ruling in a unanimous March 30 decision, saying Stengart had a reasonable expectation the e-mails would be private.

As “the first high-level court decision that addresses this issue,” the case is a game changer, says Genitempo — who’s currently representing a worker who claims bosses accessed her personal e-mail account after she left the job.

“It’s reshaped the landscape when it comes to confidentiality of employee e-mails,” he says. “We’re all going to be guided by it now.”

Mitchell Boyarsky, a partner with the workplace law firm Jackson Lewis, is less certain. He notes that the ruling hinged on the specific issue of attorney-client confidentiality, leaving the door open as far as the larger issue of e-mail privacy.

“It’s possible to interpret that decision as limited,” he says. “There are still questions to be answered.”

One thing it will definitely accomplish, he adds, is to alert employers “about the need for company policy regarding e-mail issues.”

Text-book case

Next week the eyes of anyone with an interest in e-mail privacy will be on the Supreme Court, when it takes up the case of the City of Ontario v. Quon.

The suit was brought by Jeff Quon, a police officer in Ontario, Calif., who was issued a pager by his department. Informal policy was that officers could use the pagers for whatever they wanted, as long as they paid any charges for exceeding their monthly text allotment. Quon, a SWAT team member, was the department’s most prodigious texter, and paid numerous times, eventually leading the chief to order transcripts from the wireless service to see what he was messaging about.

Unfortunately for Quon, the transcripts revealed that he gave his thumbs a steady workout sending sexually explicit messages to his mistress. He sued, saying his rights had been violated, and an appeals court agreed, saying he had “a reasonable expectation of privacy.”

As with the Jersey case, there are specific issues in Quon that may limit how wide a precedent a decision will set. For one, Quon is a government worker, not a private employee. Still, privacy advocates will be watching the case closely.

“This is something that touches virtually every workplace,” says Devjani Mishra, a labor and employment partner with Seyfarth Shaw LLP.

Mishra and others see a trend in recent cases that have addressed e-mail privacy — to carve out a zone of privacy for workers in an environment where the lines between work and private life and increasingly blurred.

“If there’s any issue employers and employees are struggling with, it’s where does the workday end?” she says. “How much of my life does the company control?”

Where the lines will be drawn is an open question. But there’s one thing everyone seems to agree on. As Coney puts it: “We haven’t heard the last of this. These cases will keep coming.”